The Virginia Defamation Law Blog

Travel agent John Mathews may have a meritorious claim against a Virginia hotel for breaching a contract to provide food for a large group of tourists. It's hard to tell, though, when he clutters his complaint with counts for defamation, invasion of privacy, tortious interference, and intentional infliction of emotional distress, and fails to include a count for breach of contract. This latest complaint represents Mr. Mathews' fourth attempt to present his case to a federal court in Pennsylvania. Had he opted to file a simple breach-of-contract action in Virginia's general district court instead, he might have secured a judgment by now.

The allegations go as follows. Mr. Mathews booked a "Winter Get Away Tour" with the Westin hotel at Washington Dulles in 2012. He alleges he planned the event with the hotel sales manager and estimated there would be 150 guests with the tour. He claims he emphasized that this was only an estimate and he would furnish a final number later.

When 174 people signed up for the getaway (or rather, the "get away"), the hotel was not able to feed everyone, as the head chef apparently wasn't notified of the final number. On both Saturday and Sunday nights, some guests went without meals and an unlimited, all-you-can-eat buffet was converted to a limited, one-serving one. Mathews had advertised the tour to include two buffet dinners and two buffet breakfasts and claims he had to reimburse many guests due to the missed or reduced meals.

Mathews doesn't allege breach of contract, but alleges the hotel "Sale Manager" defamed him by calling him a "dishonorable person," which "almost incited a riot." He alleges the defendants' actions forced him to reimburse $3,000 to certain guests and caused him to suffer an additional $4,000 loss because some guests refused to pay their balances owed. For the alleged defamation, he claims at least $450,000. As mentioned above, he also alleges a number of other torts.

If Mr. Mathews contends the hotel breached an agreement to provide sufficient food for 174 people, he should have included a breach of contract claim. Different policy considerations distinguish the law of torts from the law of contracts, and there are rules against trying to recover pain-and-suffering type damages when all you've suffered are disappointed economic expectations. If the case is really about false statements made by an agent of the hotel and not a contractual breach, more will be required than a vague statement about being "dishonorable."

I mentioned this is the plaintiff's fourth attempt to survive dismissal. Mathews originally filed a separate case against the hotel, alleging constitutional violations, defamation, and emotional distress. The court dismissed the constitutional claim because the defendant wasn't a state actor as required by 42 U.S.C. § 1983. The complaint hadn't properly pled the elements required to assert diversity jurisdiction so the court gave Mathews a chance to amend his complaint to include the necessary allegations.

Mathews filed an amended complaint, adding Starwood Hotels & Resorts Worldwide, Inc. as a defendant. But the complaint failed to plead the defendants' citizenship so the court dismissed it with leave to file a second amended complaint if Mathews could cure the jurisdictional defect. The court explained that, under 28 U.S.C. § 1332(c)(1), corporations are citizens "of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principle place of business."

Mathews tried again, filing a second amended complaint against Westin and Starwood with substantially the same allegations as before. He identified himself as a Pennsylvania citizen, Westin as a "US citizen incorporated in Virginia," and Starwood as a "US citizen hotel incorporated in the state of Maryland."

But the second amended complaint failed to state either defendant's principal place of business. Once again, the court dismissed the case for lack of subject matter jurisdiction. Pointing out that Mathews had been instructed how to cure the problem but hadn't done so, the court concluded that further attempts to amend would be futile. The case was dismissed without prejudice to plaintiff refiling his claims in state court.

But Mr. Mathews didn't re-file in state court. Instead, he brought this new case in federal court. If the court doesn't dismiss it on res judicata grounds, it will likely dismiss it for failure to state a valid claim.

An essential requirement of any defamation action is that the alleged statement convey factual assertions. Pure expressions of opinion (i.e., those that neither state directly nor imply any assertion of objective fact) are protected by both the First Amendment and Section 12 of the Virginia Constitution. Whether a particular statement should be classified as fact or opinion is a threshold issue for the court to decide. Consequently, many libel and slander cases are dismissed at the outset and never reach a jury.

There's not always a bright line between the two, and sometimes courts get it wrong. Yesterday, the Virginia Supreme Court reversed the decision of a Halifax County court to dismiss a defamation action on the ground the statement constituted opinion and not fact. The statement at issue was this: "Tharpe told me that Tharpe was going to screw the Authority like he did Fort Pickett."

It's certainly tempting to treat a statement like this as opinion, because whether or not someone got "screwed" is subject to differing viewpoints. But look closely. The speaker is not making the claim that Tharpe screwed the Authority or screwed Fort Pickett. What he is saying is that Tharpe TOLD him these things. Tharpe's position in the trial court was that he never made such a statement. So the issue wasn't whether or not getting "screwed" is a matter of fact or opinion, but whether it was a factual assertion to claim that Tharpe made this particular statement. The Virginia Supreme Court held that it was "indisputably capable of being proven true or false."

The Virginia Supreme Court had not previously dealt with the issue of whether fabricated quotations might be actionable as defamation. Other courts, however, have supported the theory, and the Virginia Supreme Court found their reasoning persuasive.

The United States Supreme Court, for example, held in Masson v. New Yorker Magazine that falsely attributing a statement to another can harm that person's reputation regardless of whether the factual matters in the quoted statement are true or false. The false attribution can cause the public to infer the plaintiff has a particular attitude or character trait that can damage his reputation.

In the Masson case, a psychoanalyst was falsely quoted as stating that he was "the greatest analyst who ever lived." To determine whether the statement is actionable, it is not necessary to determine whether the psychoanalyst was, in fact, the greatest analyst who ever lived. Many would not want to associate with any analyst who would make such a bold and arrogant proclamation. Therefore, the harm to reputation lies in the false allegation that the analyst made the statement, and whether he made the statement is a factual matter capable of being proven.

The court noted in a footnote that there is no "wholesale defamation exemption" for statements of opinion because sometimes apparent expressions of opinion imply facts. While not discussed in the opinion, I think the alleged statement is particularly egregious because it attributes to Tharpe a statement that implies incriminating facts. If Tharpe had said that he had "screwed Fort Pickett," I would argue that such a statement implies that Tharpe--as a matter of fact--acted dishonestly, committed fraud, or otherwise cheated Fort Pickett in some way. A reasonable listener hearing the alleged statement might have formed these conclusions and not just understood Tharpe as expressing his personal opinion that Fort Pickett got a bad deal.

In any event, the court held it was error to sustain the demurrer and remanded the case to the trial court.

Kenneth M. Seaton, sole proprietor of the Grant Resort Hotel and Convention Center in Pigeon Forge, Tennessee, brought a defamation action against TripAdvisor after the hotel was identified by the travel site as the dirtiest hotel in America. The United States District Court for the Eastern District of Tennessee, however, found that TripAdvisor's list of "2011 Dirtiest Hotels" could not support a defamation claim and dismissed the case on August 22, 2012.

TripAdvisor relies solely on customer reviews to compile its "Dirtiest Hotels" list - it does not conduct an independent investigation of each hotel. Seaton claimed that TripAdvisor attempted to assure the public that its list is factual, reliable and trustworthy by including the following statements along with its list: (1) "World's Most Trusted Travel Advice"; (2) "TripAdvisor lifts the lid on America's Dirtiest Hotels"; (3) "Top 10 U.S. Crime-Scenes Revealed, According to Traveler Cleanliness Ratings"; (4) "Now, in its sixth year, and true to its promise to share the whole truth about hotels to help travelers plan their trips, TripAdvisor names and shames the nation's most hair-raising hotels"; (5) "This year, the tarnished title of America's dirtiest hotel goes to Grand Resort Hotel and Convention Center, in Pigeon Forge, Tennessee." The list quoted a TripAdvisor user: "There was dirt at least ½ inch thick in the bathtub which was filled with lots of dark hair." The list also featured a photograph of a ripped bedspread.

Defamation claims require proof of false statements or false implications. Seaton contended that by publishing its "2011 Dirtiest Hotels" list, TripAdvisor was implying that the Grand Resort Hotel and Convention Center was, in fact, the dirtiest hotel in the United States and that a reasonable person reading the list would consider this supposed fact in making their travel plans. Seaton argued that the list was not mere hyperbole because it contained actual numerical rankings with comments suggesting that the rankings were based in actual fact.

The court agreed that a reasonable person might consider the list when making hotel plans, but found that "propensity to initiate negative mental contemplation on behalf of a potential patron" is not the test for defamation. In determining whether TripAdvisor's list is defamatory, the court would not consider whether the list is compelling but rather whether a reasonable person could understand the language in question as an assertion of fact or instead merely hyperbolic opinion or rhetorical exaggeration.

The court found that neither the fact that TripAdvisor numbered its opinions one through ten nor that it supported its opinions with data converts its opinions to objective statements of fact. A reasonable person would not confuse a ranking system based on consumer reviews for an objective assertion of fact. Rather, a reasonable person would know that the list reflected the opinions of TripAdvisor's online users. Seaton did not plead any facts that would lead the court to find that TripAdvisor made a statement of fact or of opinion that it intended readers to believe was based on facts. Finally, the court found that although unverified online user reviews are a poor evaluative method, the system is not sufficiently erroneous so as to be labeled defamatory. For these reasons, the court held that TripAdvisor's "Dirtiest Hotels" list is unverifiable rhetorical hyperbole and could not form the basis of a defamation action.

Judge Jane Marum Roush of the Fairfax Circuit Court has allowed Dr. Adel Kebaish to amend his complaint against Inova Fairfax Hospital to include four additional statements claimed to be defamatory. Judge Roush had previously found the alleged statements non-actionable but was persuaded by the plaintiff's attorneys to partially reconsider her earlier ruling.

Dr. Kebaish was an orthopedic and spine trauma surgeon at Inova Fairfax Hospital. Dr. Kebaish claims that Inova and several of its doctors and physician assistants defamed him and that Inova terminated him for objecting to substandard care and fraudulent billing practices. He filed a complaint against Inova, one of its administrators and ten of its doctors and physician assistants alleging causes of action for defamation per se as well as other business torts. The defendants demurred on various grounds.

The court reviewed each of the allegedly defamatory statements in the complaint and agreed with Inova that most of the statements were either statements of opinion, not actionable as defamation, or made by persons who were not named as defendants. To successfully state a claim for defamation in Virginia, a plaintiff must show that the defendant published a false factual statement that harms the plaintiff or the plaintiff's reputation. Expressions of opinion are constitutionally protected and are not actionable as defamation.

The court initially sustained the demurrer to the defamation claim except as to two alleged statements: (1) that Dr. Kebaish had once operated on a patient with a "do not resuscitate" order without the family's consent; and (2) that Dr. Kebaish's privileges at Inova's emergency room had been revoked. Dr. Kebaish moved the court to reconsider its ruling as to the other statements.

Upon reconsideration, the court found that four additional allegations were statements of fact that, if proven to have been made and proven to be false, may be defamatory: (1) a doctor's statement that Dr. Kebaish turned away Medicaid patients; (2) a defendant's statement that Dr. Kebaish had caused a sciatic nerve injury to a patient treated for pelvic fracture and was hiding this fact; (3) a defendant's statement to an investigator for the Virginia Board of Medicine that Dr. Kebaish had operated on patients without taking x-rays, had caused complications, and had missed fractures on patients; and (4) a defendant's statement to potential patients that Dr. Kabaish's "hands shake."

Fairfax-based Direct Connect, LLC, a credit card processing company, has sued Inkthis, LLC, and its owner, Debra Sachs, for alleged defamation and tortious interference with contract. Direct Connect is upset about certain statements posted on Inkthis' Facebook wall, including one that referred to Direct Connect as "a bunch of thieves." The defendants recently removed the case from Fairfax Circuit Court to federal court in Alexandria.

The Facebook posts describe the author's frustration with certain business practices of Direct Connect, including what the author believed to be excessive charges debited from Inkthis' bank accounts. Direct Connect says the statements are false, that the defendants knew the statements were false when they made them and, by publishing descriptions of the company that included words like "inept," "horrible," and "thieves," the statements harmed Direct Connect's reputation.

Statements that are relative in nature and depend largely upon the speaker's viewpoint are generally considered expressions of opinion. Opinions cannot form the basis of a defamation action as they are protected by the First Amendment and generally cannot be interpreted as stating a provably false fact, a prerequisite for any defamation claim. Thus, referring to Direct Connect as "inept" and "horrible" will likely be deemed non-actionable opinion. Referring to the company as "a bunch of thieves" presents a closer question.

Like opinions, rhetorical hyperbole cannot reasonably be interpreted as a statement asserting actual facts. In one often-cited Virginia case, the Virginia Supreme Court held that referring to a university executive as the "Director of Butt-Licking" was mere hyperbole and could not be reasonably interpreted as a factual statement.

The interesting question here is whether referring to a group as a "bunch of thieves" should be interpreted differently than referring to a specific individual as a "thief." Calling someone a thief is unquestionably defamatory, but notice the subtle change in meaning when (1) the statement is applied to a group of people, and (2) "thief" is replaced with "bunch of thieves." Is the speaker actually asserting that each and every member of Direct Connect is a thief? I expect the court will dismiss the defamation claim.

Employment reviews often lead to libel allegations due to the fact they often contain harmful statements perceived by the employee to be false and defamatory. In most cases, however, even if the performance review contains a false statement, no defamation claim will lie because (1) statements of opinion are not actionable under Virginia law (or the United States Constitution); and (2) communications between people on a subject in which they both have an "interest or duty" are deemed privileged.

The Fourth Circuit Court of Appeals recently considered--and rejected--the defamation claims of Claudine Nigro, a former medical resident at the Shenandoah Valley Family Residency Program. After a semiannual performance review in 2009, Nigro was notified that she would not be renewed for another year of residency with the program. Nigro appealed this decision, but then resigned a few months later. She brought an action against the residency program's director and the hospital itself, claiming that she was defamed during the appeals process by the director of the program, who discussed her perceived shortcomings with the faculty appeals committee, and by employees of the hospital, who reported Nigro for allegedly recording her conversations with physicians.

Nigro alleged the Program Director defamed her with statements he made in various meetings and notices, including "There has been no evidence of improvement or intention to improve in weak areas," "There is no change in apathetic/disinterested approach or demonstrated interest in learning despite 3-4 months of discussion and coaching," and "There is faculty consensus that [Nigro] may be suffering from depression or poor career choice." The court found that all the alleged statements were either opinion, factually true, not defamatory, or were protected by the qualified privilege applicable to statements made to another with a corresponding interest or duty.

One alleged statement was that Nigro had "failed NICU." The Court acknowledged that the statement was technically false, but opined that the statement lacked sufficient sting to be defamatory. Not all false statements about a person will support a defamation action. The words must be sufficient harmful in that they would tend to deter third persons from associating or dealing with the subject of the statement. The court found that a false allegation that Nigro failed the Neonatal Intensive Care Unit was "not sufficiently harmful" to be defamatory.

The United States District Court for the Western District of Virginia has found that negative comments a customer service representative made to a customer may form the basis of a defamation action.

Charles and Donna Bates operate a school photography business. They entered a contract with Strawbridge Studios, Inc., also a school photography business, under which Strawbridge purchased the Bates' accounts and employed them to handle certain accounts. The relationship deteriorated and ended in the Bates filing a breach of contract action again Strawbridge. The parties resolved their dispute and entered a settlement agreement which included a non-disparagement clause providing that neither party would "say, write, publish, broadcast, or in any other way participate in negative or disparaging comments about the other."

Later, when a customer called Strawbridge looking for a photograph she believed the Bates had taken, Strawbridge's customer service representative told the customer that the Bates were "not reputable" and "could not be trusted." The representative also stated that "things got so bad" that Strawbridge "had to get involved in a lawsuit." The Bates filed a second suit against Strawbridge and included a claim for defamation.

Strawbridge moved for summary judgment on the defamation claim, arguing that (1) the Bates failed to prove that the customer service representative made the alleged statements, (2) the Bates failed to produce evidence that the statements were false, (3) the statements were expressions of opinion, and (4) a qualified privilege protects the statements.

The court rejected all of Strawbridge's arguments, first finding that the Bates' customer declaration describing the customer services representative's negative comments was sufficient evidence to establish that the allegedly defamatory statements were made. The court then noted that the issue of whether a plaintiff has sufficiently proven the falsity of allegedly defamatory statements is a question to be decided by a jury. Strawbridge submitted third party declarations stating that the Bates were not trustworthy and did not have a good reputation, and the Bates proffered declarations from individuals that cast them in a positive light. Given this evidence, the court found that reasonable minds could differ on the issue of truth or falsity and therefore the issue must go to the jury.

Whether an allegedly defamatory statement is fact or opinion, however, is a question of law to be determined by the court. The court noted that in making such a judgment, it must consider the statement as a whole. The court found that the statements could be reasonably understood to imply the existence of defamatory facts given the context in which they were made and the fact that the customer service representative referred to the lawsuit between the parties. Therefore, the court was unable to conclude as a matter of law that the statements at issue were pure expressions of opinion.

Finally, the court rejected Strawbridge's qualified privilege argument. A communication made in good faith on a subject matter in which the person communicating has an interest or owes a duty is qualifiedly privileged if made to a person having a corresponding interest or duty. For the privilege to apply, Strawbridge must show that its representative and the customer had corresponding duties or interests in the subject matter. Here, Strawbridge failed to show that the customer had any interest in learning about Strawbridge's failed business relationship with the Bates. In fact, the customer stated in her declaration that she "had no interest in hearing these backbiting comments."

When several law firm clients were vocally unhappy about the firm's work product and billing practices, and expressed their views to a Virginia legal newspaper, the firm slapped them with a defamation suit in Richmond federal court. However, finding the allegedly defamatory statements to be subjective statements of opinion, the court dismissed the claim.

The Virginia law firm of Cook, Heyward, Lee, Hopper & Feehan, P.C. ("Cook Heyward") entered into a contract for legal services with Trump Virginia Acquisitions LLC, Trump Vineyard Estates, LLC, and The Trump Organization, Inc. Cook Heyward provided the Trump Entities with invoices itemizing fees and costs over the course of the representation. The Trump Entities requested Cook Heyward to reformat the invoice but did not object to the amount billed, and they continued to request legal services from Cook Heyward.

After a second updated invoice, the Trump Entities indicated that they had no problem with the quality of the legal work, but thought the bills were "too high" and suggested Cook Heyward reduce its fees by approximately seventy percent. Cook Heyward informed the Trump Entities that they intended to file a motion to withdraw as counsel. The Trump Entities asked Cook Heyward to reconsider, then informed them that they "should expect very bad publicity" regarding their withdrawal as counsel. After repeated requests for payment, Cook Heyward filed a motion to withdraw which the court granted.

The Trump Entities' General Counsel gave an interview to Virginia Lawyers' Weekly in which he stated that the Trump Entities were "very, very disappointed" in Cook Heyward's work quality and billing practices. He also claimed that he had to redo Cook Heyward's work multiple times. Cook Heyward filed a suit against the Trump Entities which included a count for defamation per se. The Trump Entities moved to dismiss the defamation claim.

In Virginia, a plaintiff claiming defamation must prove that the defendant published an actionable statement with the requisite intent. An actionable statement is one that is false and harms the plaintiff's reputation. If the statements are objectively true or are protected expressions of opinion, there is no actionable defamation. Words which injure a person in his profession or trade are actionable as defamation per se, meaning that the plaintiff need not show harm to reputation.

Cook Heyward argued that the Trump Entities published false, factual statements which prejudiced them in their legal profession, thus constituting defamation per se. The Trump Entities responded that the statements at issue were statements of pure opinion protected by the First Amendment.

In determining whether the statements were fact or opinion, the court first examined whether the language the Trump Entities used was "loose, figurative or hyperbolic"-- traits that would suggest the statement was not one that could reasonably be interpreted as one intended to convey actual facts. The court also considered the context and general tenor of the Virginia Lawyers' Weekly article, noting that a statement expressing a subjective view rather than an objectively verifiable fact does not constitute defamation, and that pure expressions of opinion and rhetorical hyperbole are constitutionally protected because they cannot be objectively characterized as true or false.

Based on the tenor, language, and context of the article, the court found that the statement that the Trump Entities were "very, very disappointed" in Cook Heyward's work quality and billing practices was a subjective expression of opinion. The court noted that statements of unsatisfactory job performance generally do not rise to the level of defamation and that the concept of being "disappointed" is a relative one, contingent on the speaker's internal viewpoint.

The court also found that the Trump Entities' statement that they needed to redo Cook Heyward's work represented a relative concept requiring the exercise of discretion and individualized judgment. The alleged necessity of redoing the work depended on the Trump Entities own evaluation and assessment. Finding both statements to be protected expressions of opinion and not actionable as defamation, the court dismissed Cook Heyward's defamation claim.

Julie Anne Smith and her family attended Beaverton Grace Bible Church for over two years. When the church dismissed one of its employees for "subversive conduct," the Smith family sought meetings with the Pastor and Elders to discuss the situation because they felt the termination was handled poorly. During the meetings, the Smiths and church officials discussed church policies and governance. Later, an elder informed Mrs. Smith that she must "recant" or her entire family would no longer be welcome at the church. The Smiths stopped attending the church.

Mrs. Smith later learned that Oregon authorities were investigating allegations of child molestation by a teenage member of the church whom she had seen in the child care area. The Pastor and Elders came unannounced to the Smith home demanding to know whether the Smiths knew who had reported the abuse. The Pastor informed the Smiths that they were "excommunicated."

Mrs. Smith began posting comments about the church under Google's "reviews" of the church. Congregants, former congregants, and the Pastor also posted comments, and the dialogue about church governance and doctrine continued. The Pastor removed many postings, so Mrs. Smith began her own blog, Beaverton Grace Bible Church Survivors, where she continued making and encouraging comments.

Shortly thereafter, the church and its Pastor filed a defamation complaint against Mrs. Smith and her daughter based on statements they posted online. The allegedly defamatory comments included statements that the Pastor misled the congregation and used "control tactics," that the church was not a healthy or safe place, was destructive and disturbing, and that it had a spiritually abusive environment. Mrs. Smith wrote that there is something "creepy "about the church, and she claimed that the church turned a blind eye to known sex offenders. She stated that the Pastor's "extra-biblical legalistic teaching" was wrong and that he was a liar. Mrs. Smith's daughter posted a Google review stating that the Pastor micro-managed things and bullied people and that one could not find grace at the church.

The Smiths responded with a Special Motion to Strike under Oregon's anti-SLAPP statute which allows a defendant to move to strike a claim that "arises out of" a statement made in a public forum in connection with an issue of public interest. If a defendant shows that the claim indeed "arises out of" such a statement, the plaintiff must present substantial evidence that the claim will prevail.

The anti-SLAPP statute should apply, in my view, because the Internet is a "public forum" and the statements concern matters of public interest. Various segments of the population have an interest in the statements at issue, including members of churches all over the world, people concerned with questions of personal salvation, radio listeners who hear the Pastor's sermons broadcast in the greater Portland area, persons who are the focus of the Church's evangelism, and those debating the impact of "spiritual abuse."

The church may end up having to pay the Smiths' attorneys' fees, because it's unlikely it will be able to demonstrate a likelihood of success on the merits. The statements at issue concern matters of opinion, which are not actionable. Moreover, the statements involve matters of church practices and personal religious conviction, which are protected by the "church autonomy doctrine." Finally, even if the court determines that a statement could be considered defamatory, the court will most likely find the church to be a "public figure," which would mean it could not recover absent a showing of malicious intent. Expect to see the SLAPP act put into action out in Oregon.

A federal judge in the Southern District of New York has dismissed a claim by a lawyer who claims that his ex-lovers tortiously interfered with his prospective business relationships by posting allegedly defamatory material on the Internet. In Matthew Couloute, Jr. v. Amanda Ryncarz and Stacey Blitsch, the judge held that the lawyer failed to state a claim upon which relief could be granted and denied his motion for leave to amend.

Couloute had previously dated both Ryncarz and Blitsch. After the relationships ended, Ryncarz and Blitsch posted comments on an Internet site, www.liarscheatersrus.com, painting Couloute in an unfavorable light. Both women expressed their views that Couloute was a liar and a cheater, that he was manipulative and that he used the people in his life to get what he wanted. Couloute sued them both, arguing that these statements were defamatory and that they caused him damage by interfering with his law practice in New York. He claimed that the woman made the statements with the specific purpose of causing him financial trouble. The court disagreed.

Applying New York law (which closely parallels Virginia law in this area), the court said that the plaintiff's complaint could not stand because it did not contain all of the elements for a claim of tortious interference with prospective business relations. To state a proper claim, the plaintiff would have to allege: "(1) business relations with a third party; (2) the defendant's interference with those business relations; (3) the defendant acted with the sole purpose of harming the plaintiff or used dishonest, unfair, or improper means; and (4) injury to the business relationship." In this case, Couloute failed to allege a specific business relationship with which the defendants interfered.

The court also denied Couloute's request to add a count for defamation, reasoning that the defendants' statements amounted to opinions and nothing more. "Loose, figurative or hyperbolic statements, even if deprecating the plaintiff, are not actionable," the court wrote.

It doesn't take a defamation expert to see the flaws in the $2 million libel lawsuit filed this week by Redskins owner Dan Snyder against the Washington City Paper. Mr. Snyder took offense at an article titled, "The Cranky Redskins Fan's Guide to Dan Snyder: From A to Z (for Zorn), an Encyclopedia of the Owner's Many Failings," which contains a detailed list of reasons the author considered him a bad owner. Mr. Snyder also disapproved of an image of him, published with the article in question, on which someone had doodled devil horns and a mustache, which Mr. Snyder deemed "an anti-Semitic caricature of himself" which "forced" him to file the lawsuit. Talk about thin skin.

First of all, how ironic is it that Mr. Snyder claims he was forced to bring this lawsuit to protect his reputation and good name, and yet by virtue of suing the newspaper, he has stoked the interest of the media and triggered widespread public scrutiny into his prior activities, vastly increasing the number of people who will seek out and read The Cranky Redskins Fan's Guide to Dan Snyder? Personally, I'm not a regular reader of the Washington City Paper and would never have known about the alleged defamatory statements had Mr. Snyder not called my attention to them by suing the paper. Mr. Snyder and his lawyers have alerted the otherwise complacent populace to a long list of alleged bad acts by the Redskins owner. Even if he wins the case, will he really have done himself and his reputation any favors by suing an outspoken critic?

But he won't win. As I explained in an earlier blog post, not just any hurtful or offensive comment will constitute libel or slander upon which a plaintiff could successfully sue for millions of dollars. Defamation liability requires the publication of a false factual statement that concerns and harms the plaintiff or the plaintiff's reputation. Statements of opinion, regardless of how unfavorable the opinion, are not actionable. Thus, calling Mr. Snyder a failure, likening him to the devil, and referring to the "stain" he supposedly left on the Redskins are all constitutionally protected as free speech.

Snyder's lawyers are well aware of that restriction, and therefore focus their allegations on certain statements in the article that could be more easily interpreted as factual allegations. Namely, that "Dan Snyder...got caught forging names as a telemarketer with Snyder Communications;" that he caused Agent Orange to be used to destroy trees "protected by the National Park Service" on "federally protected lands;" that Mr. Snyder bragged that his wealth came from diabetes and cancer victims; and that Mr. Snyder was "tossed off' the Six Flags' board of directors. According to Huffington Post reporter Jason Linkins, these allegations are all demonstrably true or were intended as metaphors with substantial truth to them. If the statements are true, they are not defamatory.

Mr. Snyder has an even higher hurdle to climb if we wants to recover damages against the Washington City Paper: as a widely known public figure, Mr. Snyder will need to prove not only that the article contained false statements, but that the Washington City Paper acted with "constitutional malice": that it knew the statements were false or published the statements with reckless disregard of whether the statements were true or false.

If he fails to prove, with clear and convincing evidence, that the newspaper published false factual statements (not just opinions) about him, and that they did so with malice, he will lose the case. And while losing the case would not necessarily mean that the statements about Mr. Snyder's alleged activities are true, what will public perception be?